FATAI AKINWANDE v. THE STATE
(2019)LCN/13722(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of July, 2019
CA/IB/163C/2018
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
FATAI AKINWANDE Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON
It is settled law that the guilt of an accused person can be proved by the prosecution through any of the following methods, namely;
1. The voluntary confession of the accused person
2. Through direct credible and reliable eye witness(s) or victim of the offence
3. Through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence charged. See Adio v. State (1986) 2 NWLR (Pt. 24) 581 and Emeka v. State (2001) 14 NWLR (Pt. 734) 666. PER TALBA, J.C.A.
WHETHER OR NOT A FREE VOLUNTARY CONFESSION OF GUILT CAN WARRANT A CONVICTION WITHOUT ANY CORROBORATIVE EVIDENCE
It is trite that a free voluntary and direct confession of guilt once it is satisfactorily proved is sufficient to warrant a conviction without any corroborative evidence. However the Court should test the truth thereof. See Nwachukwu v. The State (2002) 7 SC (Pt. 1) 124 at 140 ? 141 and Edhigere v. The State (1996) 8 NWLR (Pt. 464) 1 at 10 (SC). PER TALBA, J.C.A.
THE CRIMINAL OFFENCE OF CONSPIRACY
On the offence of conspiracy it is without any doubt that all the circumstances prevailing and proffered in evidence are such as the Court had easily deduce the commonality of the criminal purpose carried out by the actors in obtaining money by false pretence. Being an offence in which direct proof is a near impossibility, conspiracy is usually hatched in secrecy, the proof comes by inference from the facts and circumstances of a given case such as the present one where there is surfeit of materials from which the agreement with a common purpose can be founded. See Kenneth Clark & Anor v. The State (1986) 4 NWLR (Pt. 35) 381 at 295 Musa v. State (2005) FWLR (Pt. 262) 243 at 353 ? 354. PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Justice Ogun State, Abeokuta judicial Division, delivered by Honourable Justice A. A. Akinyemi on the 23rd January, 2018.
The gist of the case of the prosecution is that the Appellant with two other accused persons, sometimes between March and June 2011 conspired to obtain money and did obtain the sum of N17,580,000:00 (Seventeen Million Five Hundred and Eighty Thousand Naira) from Adeshina Jonathan (PW1) by false pretense. The Appellant introduced Adeshina Jonathan (PW1) to the 2nd accused who took him to one Oluwo Agbaye in Oyo State. And with the aid of the 3rd accused, Adeshina Jonathan (PW1) was tricked to part with the money which belonged to the co-operative society of the Federal Medical Centre (FMC) Abeokuta.
The Appellant and two others were charged on a two count of conspiracy to commit felony and obtaining money by false pretence contrary to Sections 516 and 419 of the Criminal Code Law, Laws of Ogun State respectively.
?The Appellant pleaded not guilty to the two counts charge. At the trial the
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prosecution called four witnesses, while the Appellant gave evidence in his own defence. In a considered Judgment the learned trial Judge convicted the Appellant and sentenced him to Seven years imprisonment on both counts.
Aggrieved by the decision the Appellant filed an appeal vide a notice of appeal filed on the 23rd March, 2018 (See pages 149 ? 153 of the record).
The notice of appeal contain three (3) grounds of appeal. The Relief sought from this Court is an order allowing this appeal and setting aside the decision of the trial Court delivered on the 23rd January, 2018. An order discharging and acquitting the Appellant.
At the hearing of this appeal on the 22nd May, 2019, the Appellants counsel adopted and relied on the Appellants brief of argument filed on the 25th April, 2018. And the Appellants reply brief filed on 8th February, 2019 and was deemed properly filed and served on 25th March, 2019.
The respondents counsel equally adopted and relied on the Respondents brief of argument filed on 24th January, 2019 and it was deemed properly filed and served on 25th March, 2019.
?
In the Appellants brief of argument the
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Appellants counsel distilled a lone issue for the determination of this appeal from the three grounds of appeal thus;
?Was the trial Court right when it convicted the Appellant for the two counts charge of conspiracy to commit felony and obtaining by false pretense?.
On his part the Respondents counsel also formulated a sole issue for the determination of this appeal thus;
?Whether from the totality of the evidence adduced at the trial, the prosecution has proved the charges as preferred against the Appellant beyond reasonable doubt?.
Upon a careful consideration of the lone issue formulated by both counsel, I am of the firm view that the issue formulated by the Respondent counsel will lead to a more judicious and proper determination of this appeal. I will therefore determine this appeal on the issue formulated by the Respondent.
?
The Appellants counsel argued and submitted that the law is clear by Section 135 of the Evidence Act, 2011, that the burden of proof is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. The prosecution has to establish by evidence the essential
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ingredients of the offences with which the accused is charged. Learned counsel submitted that the essential ingredients of the offence of obtaining by false pretence has been laid down by the Court in the case of State v. Ajuluchukwu & Anor. (2010) LPELR 5028 CA thus:
1. That there is a pretence
2. That the pretence emanated from the accused person
3. That it was false
4. That the accused person knew of its falsity
5. That there was an intention to defraud
6. That the thing is capable of being stolen
7. That the accused person induced the owner to transfer his whole interest in the property.
See Alake v. The State (1991) 7 NWLR (Pt. 205) 567 at 591 and Emukora v. FRN (2016) LPELR 41521 (CA).
Learned counsel submitted further that until all the ingredients of the offence have been proved to the satisfaction of the Court, the charge would not be said to have been proved beyond reasonable doubt. It is the contention of Appellants counsel that the charge of obtaining by false pretence was not proved beyond reasonable doubt. He relied on the case of Arije v. FRN (2013) LPELR 22125 (CA) and Onwudiwe v. FRN (2006)
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All FWLR (Pt. 319) 774.
Learned counsel argued that the testimonies of PW2, PW3 and PW4 did not in any way link the Appellant to the commission of the crime. The role played by the witnesses was not more than obtaining the confessional statement of the Appellant and his co-accused.
Learned counsel submitted that the Appellant testified at the trial that PW1 was his co-worker and when he wanted to contest for the post of chairman of the co-operative society he asked him to take him to a church which he did and that he won the position PW1 approached him again when he was to re-contest for the same chairmanship position. But PW1 did not agree to go to the church he earlier took him because PW1 said he could not bear to go there again after he failed to fulfill the promise he made to the church. Hence the Appellant introduced PW1 to the 2nd accused and nothing more. Learned counsel submitted that the evidence of the Appellant remained strong, intact and unshaken even after rigorous cross examination. And his testimony deserved to be considered by the trial Court. Learned counsel argued that the trial Court should not rely on the confessional statement
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in convicting the Appellant. Rather the Court should have looked outside the confession to see if there is corroboration or if there is anything outside the confessional statement that made it probable that the Appellant and no other person committed the offence. He cited the following cases: Bature v. State (1994) 1 NWLR (Pt. 320) 667; Demo Oseni v. State (2012) 5 NWLR (Pt. 1293) 351 and Olabode v. State (2009) All FWLR (Pt. 500) 607.
Learned counsel submitted that there is no evidence before the trial Court that the procedure adopted by the police to obtain the confessional statement of the Appellant was transparent. That it was obtained in the presence of his solicitor or legal practitioner to prove that the confession was voluntary. He relied on the case of Onwhoruke v. C.O.P (2015) 15 NWLR (Pt. 1483) 557 at 576.
Learned counsel submitted further that in the absence of concrete evidence against the Appellant linking him to the commission of the crime, the confessional statement of his co-accused cannot be used to convict him since he has not directly or tacitly adopted same. He cited the case of Aikhadueki v. State (2014) 9 NCC 707 and Ononoju v. State (2014) 10 NCC 131.
?
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Learned counsel contended that the prosecution has failed to prove the essential ingredients of the offence of obtaining by false pretence.
On the count of conspiracy the learned counsel argued that none of PW2, PW3 and PW4 who testified alluded to any overt act or any act whatsoever on the part of the Appellant in concert with the other accused persons to have warranted the conviction of the Appellant for the count of conspiracy to commit felony to wit obtaining money by false pretence. And that the trial Court was wrong to have convicted the Appellant alongside the other accused person.
The Respondents counsel argued and submitted that it is trite that the onus of proving a criminal case beyond reasonable doubt does not require the Respondent to prove the guilt of the Appellant beyond all shadow of doubt. It is enough if the Judge is satisfied that the evidence before him has proved the ingredients of the offence and is sufficient to establish the guilt of the accused. See Otti v. State (1991) 8 NWLR (Pt. 207) 103. He said the guilt of an accused person can be established either by eye witness account, circumstantial
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evidence or confessional statement. See Igabele v. State (2004) 34 WRN 83 at 98.
Learned counsel submitted that the confessional statement of the Appellant was admitted in evidence after a trial within trial. And the Appellant stated thus;
?I wrote my statement down myself. It took me about 20 ? 25 minutes to write it?.
See page 79 of the record. Learned counsel submitted that both the English and Yoruba versions of the Appellant statement were admitted in evidence. See page 77 of the record. He submitted further that the trial Court can rely solely on the confessional statement of an accused person to convict him. He relied on the case of Nwachukwu v. State (2007) 12 SCM (Pt. 2) 44 and Akpa v. State (2008) 8 SCM 66. Learned counsel submitted that in Exhibit 1 the Appellant confessed that he was the one who took PW1 to a herbalist in order to extort money from him. And in Exhibit 5 which the Appellant confirmed to have been volunteered by him and which was tendered through him without objection, the Appellant confirmed the fact that he duped PW1. Learned counsel submitted that a confession of guilt by an accused person is
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sufficient to warrant conviction without corroborative evidence, if it is direct, positive, duly made and satisfactorily proved. But it is trite that it is however desirable to have outside the confession some evidence no matter how slight which makes it probable that the confession is possible. Learned counsel submitted that Exhibits 1 and 5 were properly corroborated by the evidence of PW1.
Learned counsel submitted the prosecution, proved all the ingredients of obtaining money by false pretence.
On conspiracy the learned counsel submitted that it is settled law that conspiracy is inferred from the conduct of the accused person.
He relied on the case of Kolawole v. State (2015) All FWLR (Pt. 778) 564 where the Court held that conspiracy simply put is the meeting of minds of the conspirators to perpetrate an unlawful act by unlawful means. Conviction is usually founded on circumstantial evidence and a trial Court may infer conspiracy from facts, circumstances, and conduct, through which common purpose is achieved.
?
The Appellants reply brief rest on the argument of the Respondents counsel that Exhibits 1 and 5 were properly corroborated by
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the evidence of PW1. The Appellants counsel contended that the unreliable testimony of PW1 cannot be used properly to corroborate evidence that requires corroboration. I must observe that the reply brief is a re-argument of the Appellants brief. A reply brief is not meant to deal with issues already dealt with in the Appellants brief. Except where a Respondents brief raises issues or points of law not covered in the Appellants brief a reply brief is not necessary. See Dairo v. U.B.N Plc. (2007) 16 NWLR (Pt. 1059) 99 at 115.
I have carefully considered the arguments on both sides and the authorities relied upon by counsel. The Appellant and two others were charged on a two counts of conspiracy to commit felony and obtaining money by false pretence contrary to Sections 516 and 419 of the Criminal Code Law, Laws of Ogun State.
?
The first duty imposed on a trial Court when considering its Judgment is to find the facts and then draw from those facts as found inferences of fact, the proper perception of and conclusion from those facts. In this instant case there are some undisputed facts. It is not in dispute that PW1 Adeshina Jonathan Oluwaseyi and the
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Appellant are staff of the Federal Medical Centre Abeokuta, and that they knew each other. It is also not in dispute that the Appellant introduced PW1 to the 2nd accused a herbalist to provide him with a protection charm or spiritual help.
However in his evidence in Chief the Appellant stated thus;
?So I took him to a herbalist Akeem Sotayo, the 2nd accused. After introducing them on the first day, I left them together to go back to work. From that day in February 2011, till 2nd May, 2011, when police came to arrest me, I heard and knew nothing of what transpired between the complainant and the 2nd accused?.
On the other hand PW1 testified in Chief that the 2nd accused took him to Ibadan to meet one Yinka Akinsanmi a.k.a ?Oluwo Agbaye? who collected various sums of money for a powerful money doubling charm. And the Appellant encouraged him to get a loan from the co-operative society for this purpose, which he did.
?
In his Judgment at pages 144 to 145 of the records the learned trial Judge found as follows:
?The pretence alleged in this case is that the accused person pretended to PW1 that they would do a
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money doubling charm for him. Under this pretence they collected from him sums of money totaling N17,580,000:00 (Seventeen Million Five Hundred and Eighty Thousand Naira) both in US Dollars and Nigerian Naira. They took his money, never doubled it and never returned it as promised. The evidence of PW1 before this Court which has been earlier recounted is very detailed and explicit on how the scam was executed. The roles of each of the accused persons were also clearly stated by him. The evidence of PW1 was not challenged or discredited at all under cross examination and I believe it fully. In each of their confessional statements at State CID admitted after trial within trial each of the accused persons confessed to their role in duping PW1 of his money. In Exhibit 2, the 1st accused confessed that he organized the scam because PW1 did not appreciate/reward him for the help he rendered to him when he first contested for the presidency of the co-operative society and won. To seek revenge and get money from him he took him to the 2nd accused and they agreed to obtain money from him by false pretence. He admitted that his share of the money collected from PW1 was
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N500,000:00 (Five Hundred Thousand Naira only)?.
Again at pages 145 ? 146 of the records the learned trial judge found as follows;
?In Exhibits 5, 6 and 7 which were all admitted (without objection) through the accused persons themselves they all repeated their confessions to the crime.
I have no doubt going by the facts and circumstances revealed by the evidence, that all the confessional statements were made freely and voluntarily by the accused persons. I find their statements well corroborated by the evidence of PW1. To my mind the confessional statements were not only made voluntarily, they also pass the six (6) way test of truth, See R v. SKYES (1913) 8 C.A.R 233; Akpan v. State (2000) 12 NWLR (Pt. 682) 607 and Osetola & Anor v. The State (2012) 17 NWLR (Pt. 1329) 25. They are direct, positive and unequivocal.
I also find all the ingredients of the charge of obtaining by false pretence satisfied in the entire evidence adduced by the prosecution. The accused persons made a representation which they knew to be false, that they could make doubling charm for PW1. They had an intention to defraud PW1. They induced
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him to part with the money to them. The thing obtained was money an item capable of being stolen. they told a lie which they knew to be a lie intended to defraud PW1 to part with the money to them having believed their lie?.
From the above findings it is crystal clear that the learned trial Judge relied on the evidence of PW1 and the confessional statement of the Appellant. It is settled law that the guilt of an accused person can be proved by the prosecution through any of the following methods, namely;
1. The voluntary confession of the accused person
2. Through direct credible and reliable eye witness(s) or victim of the offence
3. Through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence charged. See Adio v. State (1986) 2 NWLR (Pt. 24) 581 and Emeka v. State (2001) 14 NWLR (Pt. 734) 666.
PW1 is the victim of the offence and therefore the trial Judge is entitled to rely on his evidence. It is settled law that the evidence of a single witness if believed by the Court is sufficient to secure a conviction, even if the charge is one
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for murder. SeeOkosi v. The State (1989) 2 SC (Pt. 1) 126 at 144.
The Appellants counsel submitted that PW1 might have been duped by some other persons but definitely from the testimony of the Appellant all the Appellant did was to introduce PW1 to the 2nd accused person thus the issue of the pretence being false or that the Appellant knew its falsity close not come in. Learned counsel further submitted that from the testimony of PW1 himself all he kept mentioning it was the 2nd accused person and one Oluwo Agbaye who collected money from him.
The argument canvassed by the Appellants counsel cannot hold water hence the conviction of the Appellant as principal in obtaining by false pretence was correct for although he did not actually receive the money obtained, he had clearly aided and abetted the 2nd accused person in obtaining the money.
?
On the confessional statement the Appellant counsel submitted that the confessional statement attributed to the Appellant were not more than what the police forced out of the Appellant when taking the statement from him and his co-accused. And that such a confessional statement should not solely be relied
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on by the Court in convicting the Appellant. Rather the Court should have looked outside the confession to see if the contents therein are corroborated in anyway or if there is anything outside the confessional statement that made the Appellant and no other person committed the offence.
Equally on this point the Appellants counsel is misconceived. It is trite that a free voluntary and direct confession of guilt once it is satisfactorily proved is sufficient to warrant a conviction without any corroborative evidence. However the Court should test the truth thereof. See Nwachukwu v. The State (2002) 7 SC (Pt. 1) 124 at 140 ? 141 and Edhigere v. The State (1996) 8 NWLR (Pt. 464) 1 at 10 (SC).
It is important to note that the confessional statement of the Appellant Exhibit 2 was admitted in evidence after a trial within trial. While Exhibit 5 was admitted in evidence without objection. The trial Judge founded that the confessional statements were made freely, voluntary, direct, positive and unequivocal. The learned trial Judge also found that the confessional statements had passed the 6 way test of truth as enunciated in the cases of R v. Skyes
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(Supra); Akpan v. State (Supra) and Osetola & Anor. V. The State (Supra).
The trial Court properly evaluated and assessed the Appellants confessional statement which the Court considered to be free, direct positive and unequivocal. The trial Court is entitled to admit and accept them, and to subsequently act on same to convict the Appellant.
The Appellant counsel argued and submitted that there is no evidence before the trial Court that the procedure adopted by the police to obtain the confessional statement of the Appellant was transparent. It was not obtained in the presence of his solicitor or legal practitioner to prove that the confession was voluntary. I am bold to say that there is no any decision of this Court or the Apex Court which states that any confessional statement not made in the presence of a legal practitioner must be rejected.
However if the voluntariness of a confessional statement is in issue. And the said statement was obtained in the absence of a legal practitioner, then the Court will take that into consideration in determining the weight to attach to such a statement. SeeAjiboye v. FRN (2018) 13 NWLR (Pt. 1637) 430
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at 452.
On the offence of conspiracy it is without any doubt that all the circumstances prevailing and proffered in evidence are such as the Court had easily deduce the commonality of the criminal purpose carried out by the actors in obtaining money by false pretence. Being an offence in which direct proof is a near impossibility, conspiracy is usually hatched in secrecy, the proof comes by inference from the facts and circumstances of a given case such as the present one where there is surfeit of materials from which the agreement with a common purpose can be founded. See Kenneth Clark & Anor v. The State (1986) 4 NWLR (Pt. 35) 381 at 295 Musa v. State (2005) FWLR (Pt. 262) 243 at 353 ? 354.
In the result the sole issue is resolved against the Appellant. The appeal lacks merit or substance. It fails and is accordingly dismissed. The Judgment of the trial Court is hereby affirmed. Appeal dismissed.
JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft the Lead Judgment of my learned brother ABUBARKAR MAHMUD TALBA, JCA, just delivered.
?My Lord has dealt with the issues in this appeal
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adequately and I agree entirely with the reasons given as well as the conclusion that the appeal lacks merit.
The appeal is also dismissed by me.
NONYEREM OKORONKWO, J.C.A.: I have had the benefit of reading indraft the lead judgment of my Lord Abubakar Mahmud Talba JCA in this appeal from the High Court of Ogun State.
It was, in my view, a clear case of obtaining money by false pretence. The learned trial Judge outlined the evidence such that the false pretence and the obtaining could be seen with ease.
?I followed and agreed with the reasoning in the lead judgment in this appeal and abide with the outcome.
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Appearances:
Tairu AdebayoFor Appellant(s)
O. A Lawal (Mrs.) ADPP Ogun State Ministry of JusticeFor Respondent(s)
Appearances
Tairu AdebayoFor Appellant
AND
O. A Lawal (Mrs.) ADPP Ogun State Ministry of JusticeFor Respondent
